[2004] VCAT 2558

The decision of the Responsible Authority is varied. A permit is granted and directed to be issued by the Responsible Authority under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 for the construction of a double storey dwelling at the rear of the existing single storey dwelling in a heritage overlay at 27 Tuppen Street, Yarraville. The Tribunal directs that the permit must be subject to the conditions contained in the notice of decision to grant a permit No. TP04/0128 issued by the Responsible Authority on the 15 September 2004 subject to the following modifications:

The south boundary wall must be set back 1.0 metre from the common boundary and shortened to 5.99 metres in overall length along the kitchen and store to allow for the planting of screening vegetation to the satisfaction of the Responsible Authority between the common boundary and the development. The kitchen and store room on the ground floor may be re-arranged to allow for the above setbacks, and a window may be inserted into the kitchen provided there is no overlooking over the fence.

2

Condition 1(b) must be amended to include the following new conditions 1(b)(v) & (vi):

1(b)(v) landscaping in the 1.0 metre southern setback;

1(b)(vi) A notation on the landscape plan that the permit holder must, at its own expense, replace the paling fence and its appurtenant lattice abutting the second dwelling at its present high height, all the while carefully removing and retaining the screen creepers and relaying same after the fence has been replaced.

3

A new condition 1(c) must be inserted to read:

The pergola over the car space must be altered to an open one similar to the northern one marked "pergola and batterns for sunshading".

4

The following new condition 2 must be added:

The motor to the spa must be contained inside the spa room and not be externally mounted.

5

The following new condition 3 must be added:

The permit holder must, at its own expense, replace the paling fence and its appurtenant lattice abutting the second dwelling at its present high height, all the while carefully removing and retaining the screen creepers and relaying same after the fence has been replaced.

6

Remaining conditions must be renumbered accordingly.

Ms Sarah Soo, urban planner, Maribyrnong City Council.

1

Neighbours in the William Angliss Californian Bungalow heritage estate object to the addition of a double storey dwelling into the next door backyard. Council issued an NOD to grant a permit subject to conditions requiring reduction in a boundary wall length and landscaping.

2

I am not quite sure why the permit applicants wish to place a double storey dwelling into their pleasant, attractively landscaped and artistic backyard, but that is the application before me.

3

The review site measures approximately 13 metre frontage, a depth of 43 metres and an area of 592 m2.

4

The proposal involves the addition of a dwelling boasting two bedrooms, living, dining and kitchen, bathrooms with a feature indoor spa room, store room and single car space. Private open space of 47m2 is to the north. A large dwelling fronting Tuppen Street remains.

5

Both landowners are house proud, with existing and newly planted vegetation a feature of both properties.

6

The style chosen sympathetically echoes the Californian Bungalow elements in the neighbourhood, such as weatherboards, corrugated metal roof, gables, gable decoration, pergolas, attic windows in upper storey dormer projections. Double storey elements are visible in the area, albeit set back from the façade of dwellings.

7

The zoning is Residential 1 with a Heritage Overlay Schedule 1 gazetted as an interim measure in 2000, pending the preparation by council of its heritage review.

8

The objectors are to the south of the proposal, and their garden abuts the proposal, which will have a 3.0 metre wall on boundary extending for six metres, given council's condition 1 requirement to shorten the length of the wall from its original 10.45 metres.

9

The area is of high quality and boasts the following characteristics:

i

Consistent Californian bungalow architectural styles

ii

Single dwellings on large lots with open backyards;

iii

Fully detached dwellings with side setbacks on both sides;

iv

car spaces off single driveways to Tuppen Street;

v

front setbacks of an average range of 5.4 to 7 metres to Tuppen Street and 7 to 8 metres average to Lincoln Street;

vi

Double storey extensions to dwellings pushed to the rear to retain the high gabled roof and single storey dwelling forms;

vii

Timber materials with corrugated iron or terracotta tiled roofs;

viii

Dwellings are being renovated, improved and are well maintained.

10

The unusual feature of this review site is its two street frontages to Tuppen and Lincoln Streets, a feature not enjoyed by any other property.

11

The objectors also have driveway access to Lincoln Street at the rear, but the entire rear yard abuts their rear neighbour at 11 Lincoln street, whereas the review site fronts the road pavement completely, without impacting on any other Lincoln street dwelling.

12

There is technical compliance with all standards bar one.

13

The one technical non compliance relates to the 3.05 setback from Lincoln Street. Rescode requires 4.0 metres, as there are no abutting neighbouring dwellings. The perpendicular Lincoln Street dwellings are setback 3.6 m and 8.5 m respectively.

14

Council maintain that this non-compliance is acceptable, given that it is an improvement to the streetscape to see an attractive development fronting onto the street, instead of the currently drab two metre high corrugated iron gate and fence. I agree.

15

It is trite planning law that compliance with the standards is insufficient, and that it is the objectives that need to be satisfied.

16

To that end, the objectors correctly maintain they will experience the brunt of the development, as it is much more setback from other neighbours.

17

They object to:

i

A boundary wall detracting from the area available to the permit applicant to plant landscaping to screen the built form from the objectors' private recreation area - mass and bulk;

ii

Overshadowing from the boundary wall and the second storey component casting additional shadows to those cast anyway by the common paling fence - so that it is more difficult for the objectors to plant screening vegetation along the boundary to soften the impact of the new double storey building- mass and bulk;

iii

A perception of overlooking from highlight windows which begin at 1700 mm above finished floor level - overlooking;

iv

Visibility of double storey built form from their kitchen, living room, outdoor eating area and garden- mass and bulk;

v

The first intrusion of built form into a consistent backyard scape of open backyards and privacy - contrary to neighbourhood character and cl. 55.02-1 of the planning scheme.

18

Council's heritage adviser, Bernadette de Corte, advised against the proposal as follows:

I have met with the owner of the above property to discuss a possible subdivision to the rear of the property. The property abuts Lincoln Street to the rear. The owner wanted to know whether it was possible to subdivide the property and construct a small two storey dwelling facing Lincoln Street. The available lot size would have to be less than 300 sqm to accommodate the second dwelling according to the owner.

Given the above and given the sometimes inappropriate nature of subdivisions in urban conservation areas, I would like to make the following comments:

•

The objectives of this particular HO is to enhance and preserve the visual relationship between contributory elements in the precinct. I sense that the introduction of a two-storey dwelling in this particular location would disturb the balance of the visual and spatial relationships that exist between the contributory components of the precinct;

•

Given that the streetscape needs to be defined from both Lincoln and Tuppen Street, the introduction of a second dwelling on such a small footprint and two storey in nature, would be inappropriate for this precinct;

•

Graeme Butler has defined the lot sizes as a contributory element in this precinct in the draft heritage review. Given the former, I think we need to give very careful consideration to any further subdivisions in urban conservation areas;

•

Given that the spatial qualities of urban conservation areas are derived from the interplay between the scale and quality of the historic fabric and the surrounding open spaces and gardens, subdivisions can be viewed as detracting from these contributory elements.

19

Ms de Corte relied for her report on the study performed by Graeme Butler, architectural historian.

20

Graeme Butler's study identifies the following cultural significance:

The Angliss Inter-War Housing Estate Precinct is historically and aesthetically significant to the city because:

•

it is among the best physical expression of the Californian Bungalow estates created between the two wars in the city and represents well this transport linked development era as expressed by:

Ø

detached Californian Bungalow and Mediterranean villa style weatherboard houses;

Ø

corrugated iron and unglazed Marseilles pattern terra-cotta tile roofing;

Ø

common front and side setbacks and originally fronted with wire fabric or low simple timber picket style fencing;

Ø

regular block sizes as shown on LP10637;

Ø

single 3m maximum width crossovers to garaging set at the back of the block accessed by side drives, and

Ø

concrete footpaths, kerb and channelling (Criterion A4);

Ø

the precinct's Californian Bungalow style houses are true to period, particularly in streets like Tuppen Street (Criterion C2);

Ø

of the link with William Angliss and, as a comparison with his Edwardian-era worker housing, this precinct is the city's best built representation of his 1920s Footscray estates and represents a period where his business interests were diversifying and expanding (Criterion H1); and

Ø

of the comprehensive nature of the Angliss development with its provision of much-needed open space and a shopping centre for the estates, following the latest town planning principles of the time (Criterion A3).

21

Graeme Butler's study makes the following recommendations:

•

to conserve and enhance and identified contributory elements in the precinct and individually significant places, as perhaps the best physical expression of the Californian Bungalow estates created between the two wars in the City, where elements include buildings, objects, landscape, lot sizes, land and street works and enhancement includes the reinstatement of missing original elements;

•

to conserve and enhance the visual relationship between contributory elements in the precinct;

•

to conserve and enhance the public view of these contributory elements;

•

to promote the historical association with William Angliss;

•

to conserve and enhance the amenity of the precinct to aid in its heritage conservation;

•

to ensure that new elements within the precinct are recessive and related to the precinct's contributory elements in roof and plan form, external materials, front and side setbacks from property boundaries and building bulk as viewed from public areas; and

•

that Council investigate the preparation of an incorporated plan for the Angliss Inter-war Housing Estate Precinct which will embody the above objectives.

22

Council ruled against her and Graeme Butler on the basis that:

i

the subdivisional frontage pattern would not be affected by the proposal, as there is a rear entry. No second driveway intrusion is necessary off the Tuppen frontage to access the second dwelling;

ii

it would be more attractive than the present 2.0 metre high metal fence and gate.

23

The two identified issues are whether the proposal

i

is consistent with Rescode objectives;

ii

respects the heritage character of the area, including spatial subdivisional issues.

24

Site inspection revealed that the objectors enjoy an aspect that is robust enough to stand the visual intrusion of double storey mass at that edge of their land, provided it is moved away from their common boundary, so that screen landscaping can be planted.

25

The presence of the existing northern 1.9 metre high paling fence topped by lattice and well covered by creepers flowing over the top is what draws me to this conclusion. This northern aspect for the objectors is entirely the opposite of their southern aspect, where the fence barely reaches a height of about 1.5 metres.

26

From inside the objectors' kitchen window, the closer creepers will screen the development, while some of it will be obliquely seen from inside their living room. It is not such as to be unreasonable at his angle.

27

From the objectors' backyard, they experience:

i

An open aspect to their southern neighbour;

ii

A clearly visible dwelling at 11 Lincoln Street, softened by canopy trees and side plantings;

iii

A high fence with lattice overgrown with creepers to the north.

28

Looking at the discrete issues of mass and bulk from a Rescode perspective alone, a balance can be achieved between the strategic objective of providing an additional dwelling off a second street frontage in this inner city location close to all amenities - and ensuring the neighbours' amenity is protected.

29

This is achievable by requiring the boundary wall, although compliant with Rescode's standards, to set back 1.0 metres to enable:

i

the replacement of the paling fence with its trellis and overgrown creepers softening the impact of the double storey form in the backyard;

ii

the provision of a 1.0 metre landscaped strip, wide enough to effectively hold landscaping to screen the double storey mass and bulk from the objectors and to move the bulk away from them;

iii

the continuation of the neighbourhood character element of side setbacks from both sides of dwellings, not just from one side;

iv

the reduction in shadowing to the objector's sideage, so that they can plant their own canopy vegetation to screen the upper level of the development.

30

The neighbours' perception of overlooking is flawed, and the 1700 mm high silled windows are adequate to protect their privacy. Their perception has to be objectively reasonable, and their preference for a 1.8 m sill height is unnecessarily oppressive for the occupants, when 1.7m sill heights prevent overlooking.

31

Messrs Butler and de Corte were concerned about the diminution of the spatial component of the subdivision pattern, and I agree this would be a concern, were it not for the fact that this particular parcel of land with its two street frontages can handle it.

32

Given my requirement for a one metre side setback to be created on the southern side, it is my opinion that the spatial component is not damaged in the particular circumstances of this case.

33

Accordingly I will allow the application for review in part and direct that a permit issue subject to amended conditions.